Terry Gerton There’s been a lot of talk lately, certainly from lawmakers, from senior military leaders about the topic of lawful and unlawful orders. Describe the current situation from your perspective.
Frank Rosenblatt Well, military members have special license to use violence in armed conflict but this license is not unrestrained. Otherwise, we would just have mobs working. So a professional armed force really depends on discipline, and a key ingredient of discipline is obedience. So military members, have to follow orders. If you don’t like what your boss says at Starbucks, then they can fire you, but they can’t prosecute you. It’s different in the military. There are consequences if you don’t obey what your superiors tell you to do. But at the same time, this doesn’t work like they tried to do at Nuremberg, where I was just following orders. We do not want or expect our military members to unthinkingly obey, so orders are presumptively lawful that they receive, but they also have a duty to disobey any orders that are manifestly unlawful.
Terry Gerton That can be a tricky situation in execution. Describe for me or define for me what makes an order lawful or unlawful.
Frank Rosenblatt Well, the standard of manifestly [unlawful] is that an ordinary person of reasonable sense and understanding would know right away, I’m just not allowed to do this. And the classic example people think about is the My Lai massacre when Capt. Medina supposedly told his lieutenant, Calley, go clear the enemy out of there. Lt. Calley then did his translation of this and said, kill everyone. And the soldiers who worked for Calley should have known. I think it’s helpful to look beyond the Calley example because I think the reality of orders is more complex. There’s a story about a dog handler at Abu Ghraib. He was trained in the use of the military working dog, but he was told by his superiors when he worked at the prison, we need you to derogate from your training a little bit. We want you to use these dogs to help us with interrogations and to scare the prisoners. And so he thought, sure, I’ll go ahead and do this because my superiors are telling him to. It’s questionable whether everyone in that situation would have said, I know this is wrong. But looking years later, the military court looked and said, nope, you shouldn’t have obeyed that order. It’s manifestly unlawful.
Terry Gerton So how does that differ from a personal disagreement? I don’t think that’s the right answer, but maybe it’s lawful, maybe it is not. How does a service member decide?
Frank Rosenblatt We do see this. Matters of conscience, religious belief, or politics are no excuse. You must follow the orders even if you don’t like the president, even if you find the mission to be wrong or even distasteful. We’re seeing a lot of this because, Terry, I work with an organization called The Orders Project. It’s ordersproject.com. It is part of our national institute. And we receive calls from people who have questions about their orders. And here we see the spectrum. People say, what if I’m asked to do this? Or I’m told that we’re going to Chicago. What should I do? And so the National Guard deployments are very interesting because the legal status of them changes by the day. We just saw a new decision on the National Guard deployments in Los Angeles. So let’s say we get a call from someone who says, I’m being told that I’m going to deploy to Chicago in a couple months. It would take a crystal ball, not legal analysis, to say that’s going to be lawful or unlawful. We just don’t know how the courts will decide. So in that hypothetical, we would say you do need to plan and go on this mission unless you have an opportunity to not re-enlist. That is something that you presumptively will have to do, even if deploying to Chicago wasn’t the reason why you decided to join the military.
Terry Gerton I’m speaking with Professor Frank Rosenblatt from the Mississippi College School of Law. He’s a recognized expert in military justice, a former U.S. Army JAG officer, and president of the National Institute for Military Justice. Frank, you were talking there about a situation where a service member has some lead time between what they’re being told they’re going to have to do and actually having to go do it. In some of these operations, though, they’re making decisions in real time. So what should folks be thinking about? You know, if they get an order to fire and they have seconds to decide whether to do that or not.
Frank Rosenblatt This is really happening. And I’ll tell you one scenario that people talk about that’s based on reality. Let’s say a senior elected official says, I want you to shoot protesters in the legs. Then you would think and know, OK, that’s not lawful. But it’s not as easy as that. Because if you say, sir, that’s unlawful, that might just pull you out of the picture and not be part of more consequential decisions. So that person does not have time to call a lawyer. And it’s really a test of their own judgment and mettle. What we would not expect would be direct compliance with that order. We think maybe we could seek clarification or interpret this in a way and give guidance to subordinates that excises that illegal element. You could take that and then translate that as we need to demonstrate our presence. We need to comply with the law. In other words, I’m saying that there are times when military members should disobey orders.
Terry Gerton Typically, it’s going to be a senior official who’s making the decision. We don’t necessarily rely on the junior operator to make this call in live action. But if they do refuse an order that later turns out to be lawful, or they execute an order that later turned out to unlawful, what are the repercussions?
Frank Rosenblatt This is why it’s so tricky. It’s really a high wire act that we’re asking our military members to do. We are putting them in legal jeopardy when we are boundary pushing in how we do military operations. On the one hand, if you push back on something and you don’t comply, and it turns out that was a lawful order, then you’re going to face consequences for that disobedience. Everything from administrative sanctions to being removed from your job, possibly even a court-martial. But if you do something that you find out later is unlawful, you can also be punished for that.
Terry Gerton So what is the role of the Orders Project in helping to clarify this really complicated conversation?
Frank Rosenblatt This topic obviously has received a lot of nationwide attention lately, and what that means is there are a lot voices out there that represent different religious beliefs, political beliefs, and they’re saying is we want to help soldiers. Sometimes they’re urging disobedience. That’s not what we do. What we’re trying to do is, you know, the National Institute, we’ve been around since 1991, we’re a collection of military law experts, and we want there to be some sort of source that is authenticated that military members know that when I call this, I’m going to get it straight. I’m gonna hear from somebody who, you know, thumbs through the judge’s bench book, the manual for courts martial, and can actually tell me and give me sound legal advice that’s actually based in military law and not based on, you know, some other agenda.
Terry Gerton I think we haven’t heard the end of this conversation, we’re going to continue to follow through on it. So are there reforms or education efforts that you would suggest that could help military service members, political appointees better understand the issues that are at stake here and make the right call from the beginning.
Frank Rosenblatt What I would like to emphasize is, you know, I’m a law professor and a former judge advocate, but I actually want to de-emphasize the role of lawyers in this. I think that the issues with orders come when we ask people on the fly to do something that they haven’t had the time to think through, rehearse, and train upon. I think these issues, Terry, of lawful and unlawful orders come down to if it’s not a legal briefing that’s going to solve everyone’s questions. But when they can practice and build their expertise and competence and see where the boundaries are of their behavior. Every time our military goes to do something, whether that’s operating in cities in Iraq or now in these boat strikes in the Caribbean, if we have the chance to practice this and work through contingencies, then our military members will be emboldened, they’ll be more confident, they’ll know exactly what the right and left limits are.
Terry Gerton It feels like the military is being asked to push a lot of boundaries right now. Would you say from your perspective, we’ve been in situations like this before? Are there lessons we can learn from the past that would help us better define the space right now?
Frank Rosenblatt When we think back to 9/11, for example, there was a strong demand to immediately begin military operations. And there wasn’t really a lot of chance to rehearse this and to know exactly what we were doing and to integrate all of the different perspectives. But I do think what’s important in this is that we have a process. At every military operational command, there are staff officers who each bring a different level of expertise. There are commanders who are trained. If we let them function, let them do their jobs, and we do this without trying to rush people or without political interference. Now sometimes we have to respond to emergencies and there isn’t that time. But we should trust and we should have a lot of confidence in our military members and our commanders. They want to do the right thing. Let’s give them the tools and the opportunity and they won’t let us down.
Terry Gerton Where do you hope this current discussion of lawful and unlawful orders takes us? What do you think the outcome will be?
Frank Rosenblatt In some sense, the temperature has been awful hot on this, and it’s not really, I think, wise for this to be a political issue. And actually, if you listen to Republicans and Democrats, they’re largely saying the same message about this, but they’re not trusting the motives of each other. But maybe the bright side of this, the opportunity here, is the attention on this will give a greater appreciation for the difficulty that we put military members in when we rush them to do things, and when we are really pushing the limits of what we have done before, whether that’s boat strikes in the Caribbean or National Guard deployments in cities.
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